Firm News & Updates

Coronavirus & Comp Ed: Ensuring Our Children with Disabilities Are Receiving a FAPE

By Jeffrey L. Forte, Esq. | Forte Law Group LLC | www.fortelawgroup.com
A Special Education Attorney & Certified Child Advocacy Law Practice

As we all come to grips with the new temporary norms across our country due to the COVID-19 pandemic, it is critical that we understand and fully appreciate the impact this outbreak is having on special education and related services to our students with disabilities and their families. It is absolutely essential that families make informed decisions about the educational wellbeing of their children with disabilities by consulting with their local education agency. It is also equally important that families know their child’s rights under the Individuals with Disabilities Education Act (IDEA) during this crisis situation, including their potential rights to compensatory education (“comp ed”).

What is Compensatory Education?

Under the IDEA, local educational agencies (LEAs) are legally obligated to provide all children eligible to receive special education and related services with a free appropriate public education (FAPE). If your LEA does not give your child the special education and related services they are supposed to be providing as forth in your child’s IEP, your child may be eligible to receive compensatory education. Compensatory education is a compensation fund so to speak that helps your child catch up on lost time, hours and related services for the duration of when your child was denied a FAPE. The amount of time and services that your child missed is referred to as compensatory education.

Is Your School District Closed, Open or Available for E-Learning?

If your LEA is closed and is not providing any educational opportunities to the general student population during the COVID-19 outbreak (i.e., school closure similar to a snow day), then your LEA is not legally required to provide services to children with disabilities during the same timeframe. The problem arises, however, when your LEA decides to offer online learning or e-learning alternatives to the general student population, even if voluntary, while not offering the same opportunities for specialized instruction and related services to students with disabilities pursuant to their IEP or 504 plan. In essence, your LEA, despite its best intentions, is providing educational opportunities to “some” students, but not others and therefore is not legally compliant.

Just this week, the United States Department of Education (USDOE) issued guidance to LEAs on how to appropriately handle providing special education and release services to children with disabilities during the Coronavirus Disease 2019 (“COVID-19”) outbreak.[1] The USDOE provides guidance that your LEA “must ensure that, to the greatest extent possible” each student with a disability be provided the special education and related services set forth in the student’s IEP or 504 Plan. The present concern that parents should inquire about is how their LEA is going to ensure that a student with a disability receives their IEP or 504 special education and related services “to the greatest extent possible” during the school closure. I anticipate this is where a plethora of compensatory education claims will need to be examined and provided once schools are back in session. The anticipated issues will include to what extent and amount of compensatory education will legally need to be provided.

How is Compensatory Education Calculated?

Generally speaking, the starting point in determining any compensatory education award is by showing when a parent knew or should have known about their child’s denial of a FAPE. To put this into context, if your child’s LEA decides to remain closed, but starts to offer e-learning programming for general education students, but not the same to children with disabilities, you should mark and enter that date down in a journal.

Next, you need to look at what educational benefits would have accrued during your child’s denial of a FAPE period. This requires you to examine both the qualitative and quantitative benefits your child would have received had your child been offered a FAPE. There is no “cookie-cutter” approach to this analysis since your child’s education is specialized and uniquely designed to meet his or her needs.

Lastly, it is critical that you keep and maintain a sufficient record of your child’s right to claims of compensatory education. An impartial hearing officer cannot appropriately determine the amount of your child’s compensatory education claim unless you as a parent are able to provide the hearing officer or mediator with sufficient insight as to the precise type of educational and related services your child missed in order further to promote your child’s progress as set forth in your child’s IEP goals and objectives and service hours.

My firm and I are actively monitoring updates from the USDOE as well as following how LEAs are offering educational programming to students with disabilities in order to ensure our children are being appropriately education to the greatest extent possible during COVID-19 outbreak.

Q&A for Parents

Q&A for Parents: What You Need To Know Relating to a School District’s Responsibilities to Provide Special Education & Related Services to Children with Disabilities During the Coronavirus Virus Outbreak

By Special Education Attorney Jeffrey L. Forte, Esq. | Forte Law Group LLC

The United States Department of Education just issued guidance to local school agencies on how to appropriately handle providing special education and release services to children with disabilities during the Coronavirus Disease 2019 (“COVID-19”) outbreak. While the spread and concerns of the COVID-19 outbreak continues, this blog is intended to provide a brief “need-to-know” for all parents of a child with a disability on how this impacts your child’s Section 504 or IEP based education.

QUESTION 1: Is my local education agency (LEA) legally obligated to provide a free appropriate public education (FAPE) to my child with a disability during the COVID-19 outbreak?

ANSWER 1: NO. Specifically, if your LEA has decided to close its schools to prevent the spread of the COVID-19 outbreak, and does not provide any educational services to the general student population, then your LEA is not legally required to provide services to students with disabilities during that same time frame. 


QUESTION 2: If an LEA continues to provide educational opportunities to the general student population during the COVID-19 outbreak, is my child with a disability also entitled receive the same educational opportunities that are being provided to the general student population during the school closure?

ANSWER 2: YES. Your LEA must ensure that your child with a disability has equal access to the same educational opportunities as the general student population during the school closure, including the right to a FAPE, pursuant to the legal provisions of the Section 504 and Title II of the Americans with Disabilities Act. Moreover, your LEA “must ensure that, to the greatest extent possible” each student with a disability be provided the special education and related services set forth in the student’s IEP or 504 Plan.[1] The present concern that parents should inquire about is how their LEA is going to ensure that a student with a disability receives their IEP or 504 special education and related services “to the greatest extent possible” during the school closure. Arguably, I anticipate this is where a plethora of compensatory education services hours will need to be made up and provided once schools are back in session. The anticipated issues will include to what extent and amount of compensatory education will legally need to be provided. 


QUESTION 3: If my child with a disability contracts COVID-19 and is absent for an extended period of time while school is open, must my LEA provide special education and related services to my child?

ANSWER 3: YES. If your child with a disability contracts COVID-19 while your LEA is open, your child may be eligible to receive special education and related services by way of homebound instruction arrangements with your LEA. 


QUESTION 4: May an IEP team consider a remote or distance learning plan in your child’s IEP if the COVID-19 outbreak causes school closure?

ANSWER 4: YES. Though not required, IEP teams may include and provide for remote and distance learning plans in your child’s IEP. Such a plan would be considered a “contingency provision” and may include delivering your child’s special education and related services at an alternate location or via online or through virtual instruction to the extent that such instruction is meaningful. Such a plan should be discussed as an IEP team. 


QUESTION 5: My LEA school district is closed, but my child with a disability attends a private therapeutic out of district special education school that is open. Is my child’s LEA obligated to continue to transport and educate my child at my child’s out of district specialized placement?

ANSWER: NO. Please see question and answer 1. If your LEA is closed due to the COVID-19 outbreak, then all students are not attending school and therefore your LEA does not need to provide transportation or education for your child at your child’s out of district school. That said, you should call your child’s out of district school and inquire if it is continuing to remain open and decide whether or not you want to arrange for your own transportation to and from your child’s private school.

To view the US Department of Education’s recent guidance, click below:

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf

Basics & Overview of the IDEA

By Jeff Forte, Esq.

Fairfield County Special Education Attorney Jeff Forte discusses the basics and general overview of the Individuals with Disabilities Education Act in this parent empowering tutorial video.


If you suspect your child may have a disability, then it is critical that you to become familiar with the special education acronym and legal term “IDEA.” IDEA stands for the Individuals with Disabilities Education Act. It serves as the governing legal authority for all special-education and related services that a child with a disability receives throughout a child’s academic tenure within the public-school system.

The IDEA was originally enacted in 1975 by the U.S. Federal Congress. At that time, it was referred to as the Education for All Handicapped Children Act. Over the years since then, it has been reauthorized and is now referred to as what we now call it today the IDEA.

The basic premise of the IDEA is that it is a federal special education law which requires each state that receives federal education funding to comply with both the procedural and substantive requirements of the IDEA. When a parent knows or suspects that their child has a disability, the IDEA is the law that parents should become familiar with in order to more appropriately advocate for the special educational rights and related services of their child.

One of the most critical aspects of the IDEA that is important for parents to understand is just because your child has been clinically diagnosed with disability does not necessarily mean that your child is eligible to receive a special education and related services under the IDEA. Under the IDEA, there are three main requirements.

The first requirement is age – a child may be eligible to receive a special education between the ages of 3 through 21 years of age. The second requirement is disability – there are 13 disability categories that a child may be found eligible under the IDEA. The last requirement is the most important one – a child’s disability must “impact their access” to receiving an education in order to qualify for special education and related services. If a child is found eligible for special education, then the child is entitled to receive special education and relates services through the development an Individualized Education Program, or called an IEP.

Attorney Jeffrey Forte is interviewed by the CT Examiner on mediation and non-disclosure agreements in Connecticut special education litigation.

On October 22, 2019, Attorney Jeffrey Forte was interviewed by CT Examiner news reporter Julia Werth on mediation and non-disclosure agreements regarding Connecticut special education litigation. Below is the link to the news article. Continue reading “Attorney Jeffrey Forte is interviewed by the CT Examiner on mediation and non-disclosure agreements in Connecticut special education litigation.”

Fairfield County Parent Magazine publishes special education article authored by Jeffrey Forte

The September 2019 issue of Fairfield County Parent Magazine featured a leading article authored by special education attorney Jeffrey Forte entitled, “School Refusal Requires Immediate Action.” The article includes practical tips on how to address a child’s anxiety and school refuse within the IEP.

>> The September 2019 issue of Fairfield County Parent Magazine

Lawsuit Pending After Teacher Posts Video Showing Norwalk Child Misbehaving in Class

William Hornyak and his wife, Mary Ann Choeun, found out through friends that one of their son’s teachers had posted to social media a video of him “acting up” in class. Now, the couple is planning to sue that teacher, the town of Norwalk and the town’s school board.

The attorney for the parents of an 8-year-old boy whose teacher allegedly posted his misbehavior in class on social media has filed legal documents that are a precursor to a lawsuit with the Norwalk town clerk’s office.

read more: https://www.law.com/ctlawtribune/2019/04/18/lawsuit-pending-after-teacher-posts-video-showing-norwalk-child-misbehaving-in-class/?slreturn=20190812150833